Thomas v. Com., No. 2002-SC-0021-DG.

• Decision Date: 18 November 2004
• Docket Number: No. 2002-SC-0021-DG.
• Citation: 153 S.W.3d 772
• Parties: Flaminto THOMAS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

153 S.W.3d 772

Flaminto THOMAS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0021-DG.

Supreme Court of Kentucky.

November 18, 2004.

Rehearing Denied February 17, 2005.

Irvin Halbleib, Jr., Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Courtney J. Hightower, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Appellant, Flaminto Thomas, and his wife, Dellithi Thomas, were convicted by a McCracken Circuit Court jury of criminal abuse in the second degree. KRS 508.110. Appellant was sentenced to three years in prison enhanced to seventeen years upon the jury's additional verdict that he was a persistent felony offender (PFO) in the first degree. KRS 532.080(3). The Court of Appeals affirmed his criminal abuse conviction but reversed the PFO verdict because the documentation of Appellant's prior felony convictions in Illinois did not contain the statutorily required judicial certification. KRS 422.040. Appellant seeks further review claiming (1) there was insufficient evidence to support his conviction of criminal abuse in the second degree; (2) the Commonwealth exercised its peremptory strikes in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (3) an item of real evidence introduced at trial, a green, plastic, twenty-ounce Mountain Dew soda bottle containing cocaine residue, was insufficiently identified to authorize its admission into evidence. KRE 901. Finding no error, we affirm.

I. SUFFICIENCY OF THE EVIDENCE.

On the night of November 4-5, 1999, Dellithi Thomas was at home alone with two of her children in the rental mobile home that she shared with Appellant. The children had fallen asleep in the living room while watching a movie on television. At approximately 4:00 a.m., while Mrs. Thomas was asleep in the master bedroom, D.W., then age two, crawled into bed with her. She noticed that D.W. was extremely groggy but did not realize until approximately 6:30 a.m. that he was seriously ill. She later discovered that he had ingested five or six Valium pills that she kept in an unlocked curio box in the drawer of a dresser. When Appellant returned home, she told him what had happened. Appellant mixed milk and castor oil in a green, plastic, twenty-ounce Mountain Dew soda bottle and fed it to D.W. He then retired to the bedroom and went to sleep. At 9:00 a.m., Mrs. Thomas attempted to use the telephone in the trailer park rental office to call for help; however, the attendant had not yet arrived. Later, she sought help from her mother, Jeannie Herndon. Herndon instructed her to bring D.W. to her place of employment. When Herndon noticed that D.W. could not hold his head up, she and Mrs. Thomas transported him to the emergency room at Lourdes Hospital.

At the hospital, Mrs. Thomas initially denied knowing the cause of D.W.'s condition. Later, she told the attendant nurse that he had stuck his head into a heating vent, leading the nurse to believe that D.W. was suffering from carbon monoxide poisoning. Subsequent urine tests revealed the presence of both Valium and cocaine in his system. D.W. was extremely lethargic, could not hold his head up or talk, and at one point, almost stopped breathing and was placed on a respirator. Ultimately, he was airlifted to Vanderbilt Hospital and treated in the pediatric intensive care unit. There was no evidence that he sustained any long-term complications from the drug ingestion although there was medical testimony that it may be too early to make that determination.

Eventually, Mrs. Thomas was arrested and Appellant left Kentucky for Chicago, Illinois. Several days later, Herndon retrieved Mrs. Thomas's belongings from the rental mobile home and stored them in her attic. While cleaning out the mobile home, she discovered an empty, green, plastic, twenty-ounce Mountain Dew bottle that contained a white residue subsequently determined to be cocaine.

KRS 508.110 states in pertinent part:

(1) A person is guilty of criminal abuse in the second degree when he wantonly abuses another person or permits another person of whom he has actual custody to be abused and thereby:

(a) Causes serious physical injury; or

(b) Places him in a situation that may cause him serious physical injury. . . .

(c) Causes torture, cruel confinement or cruel punishment; to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

On a motion for a directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth's favor. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). After learning that D.W. had ingested a substantial quantity of Valium, Appellant did not seek proper medical treatment but instead fed him a home remedy of milk and castor oil. Appellant asserts that the Commonwealth was precluded from advancing this theory of wanton criminal abuse because it was not specifically set forth in the indictment. This argument is unpreserved because Appellant failed to raise it at trial, RCr 9.22, and we perceive no manifest injustice, RCr 10.26, or any prejudice to Appellant. Washington v. Commonwealth, Ky.App., 6 S.W.3d 384, 386-87 (1999) (no prejudice where indictment charged defendant with "intentionally causing" injury, but jury instructions also permitted conviction upon a finding that defendant "attempted to cause" injury). See also Baker v. Commonwealth, Ky., 103 S.W.3d 90, 94 (2003) (no error where indictment but not instructions for use of a minor in a sexual performance included the word "induce," as Appellant had notice of the statutory language and the evidence supported the instruction). In fact, defense counsel addressed Appellant's defense to this theory in his closing argument: "Now the Commonwealth's going to tell you that the failure to get medical care . . . was wanton and they're guilty of second-degree criminal abuse." Counsel argued that D.W. was alert before going to the hospital and that the defendants had no way of knowing the gravity of his condition.

There is also the evidence that Appellant fed D.W. the mixture of milk and castor oil from a bottle that contained cocaine. While no witness testified that Appellant knew the bottle contained cocaine, the jury was free to infer that he did. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3, 4 (1983) (standard of review is the same whether conviction is based on direct or circumstantial evidence). We conclude that the evidence was sufficient for a reasonable jury to believe beyond a reasonable doubt that Appellant was guilty of wanton criminal abuse. Benham, 816 S.W.2d at 187.

II. BATSON ISSUE.

We are again confronted with the recurring tension between the use of peremptory challenges and the equal protection right against purposeful racial discrimination in the jury selection process. Pursuant to Batson v. Kentucky, supra, the defense team challenged the prosecutor's use of peremptory strikes to excuse all four African-American members of the jury panel. The prosecutor initially stated that he struck one juror because of his criminal history but could not remember why he struck the others. Upon re-examining his notes, he explained that his office was prosecuting one of the juror's sons on drug charges. He stated that he struck the other two jurors solely on the basis of their demeanor, facial expressions, and responsiveness during voir dire. Noting that this case may have been racially charged, given that Appellant is African-American, whereas his co-defendant wife and the victim, D.W., are Caucasian, Appellant claims that the Commonwealth used demeanor as a pretext for racial discrimination in excusing two of the four African-American jurors.

Batson established a three-step process for determining whether a prosecutor's peremptory challenges violate the Equal Protection Clause. First, the defendant must show a prima facie case of racial discrimination. If the trial court is satisfied with the defendant's showing, the burden shifts to the prosecutor to state race-neutral reasons for the peremptory strikes. The trial court must then determine whether the defendant has sufficiently proven purposeful discrimination. Batson, 476 U.S. at 93-98, 106 S.Ct. at 1722-24.

Because the prosecutor stated his reasons for striking the four jurors in question, there is no need to determine if a prima facie showing was made; thus, we proceed to the second step. Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176, 179 (1992) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality opinion)). Appellant claims that demeanor is categorically inadequate as a race-neutral explanation for a peremptory strike. He is mistaken. As stated in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), Appellant has erroneously combined the second and third steps of the Batson inquiry. In Purkett, the United States Supreme Court rejected outright the notion that certain race-neutral explanations are always pretextual or inadequate:

It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Id. at 768, 115 S.Ct. at 1771 (emphasis added) (reversing...